Opinion
No. CV02-0172570S
June 26, 2007
MEMORANDUM OF DECISION
The plaintiff, Judith Diorio, brought this action against Waterbury Hospital, Inc., her former employer. Before the court is the defendant's motion for summary judgment on all five counts of the plaintiff's fifth revised complaint.
The plaintiff alleges the following: During parts of 1996 and 1997, she was on paid medical leave from her employment with the defendant. In May of 1997, the plaintiff became ill with a bacterial infection, which caused her to be frequently absent from work. The defendant's employees "ridiculed, harassed and humiliated" the plaintiff, and claimed her medical conditions were imagined. The defendant did not modify the plaintiff's duties or schedule to accommodate her illness, nor was the plaintiff offered leave under the Family and Medical Leave Act. On September 11, 1998, the plaintiff was terminated. In November of 1998, the defendant was ordered to reinstate the plaintiff to her previous position and pay her back pay. That same month, the plaintiff returned to work and received full back pay. After returning to work, part of the plaintiff's job involved working with infants. In June of 1999, the plaintiff developed shingles, and due to the contagious nature of the illness, was no longer able to work with infants. The plaintiff's medical condition continued to deteriorate, and in August of 1999, the plaintiff was diagnosed with discoid lupus. In February of 2000, the plaintiff was also diagnosed with fibromyalgia. During these periods, the plaintiff attempted to continue working, and arranged for coverage when she was unable to do so. In March of 2001, the plaintiff was terminated for "excessive absenteeism."
In the first count of the revised complaint, the plaintiff alleges that the defendant violated Title VII of the Civil Rights Act of 1964 by continually discriminating against her "because of her physical disability," in that it refused to transfer her to a suitable position, did not offer her a suitable part-time position, and warned, suspended and terminated the plaintiff due to her attendance problems caused by her disability.
In the second count, the plaintiff alleges violations of the Americans with Disabilities Act of 1990 (the ADA). In that count, the plaintiff claims that the defendant violated the ADA by discriminating against her because of her disability by refusing to transfer her to a suitable position, by not offering her a suitable part-time position, and by warning, suspending and terminating her due to absences caused by her physical disability.
See 42 U.S.C. § 12101 et seq.
The plaintiff, through the third count of the revised complaint titled "negligent infliction of emotional distress," alleges that the defendant's actions amounted to intentional infliction of emotional distress. Specifically, the plaintiff alleges that the defendant's termination of the plaintiff in a "sudden, abrupt and derogatory manner," was "extreme and outrageous," and that the defendant "intended to inflict emotional distress, or knew or should have known" that the plaintiff would suffer extreme emotional distress. Through this count, the plaintiff seeks punitive damages for "willful, wanton and unconscionable discriminatory conduct."
The plaintiff's claim for negligent infliction of emotional distress was stricken by the court on April 13, 2006. See Diorlo v. Waterbury Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 02 0172570 (April 13, 2006, Gallagher, J.).
In the fourth count, the plaintiff alleges violations of Title VII of the Civil Rights Act of 1964 on the basis of a hostile work environment. According to the plaintiff, her former supervisor acted in a hostile manner toward the plaintiff by refusing to listen to the plaintiff's disability needs. Further, the plaintiff alleges that other employees used degrading terms to refer to her, made it "exceedingly difficult" for her to modify her schedule to meet the needs created by her disability, refused to speak to her, and made "rude and cruel" comments toward her. According to the plaintiff, the defendant created this "hostile and abusive environment" in violation of Title VII.
In the fifth count, the plaintiff alleges that the defendant violated the "regarded as" prong of the ADA. According to the plaintiff, she informed the defendant of her medical condition. The plaintiff alleges that the defendant violated the "regarded as" prong of the ADA by terminating her employment despite its knowledge of her medical condition.
The defendant's motion for summary judgment is accompanied by five exhibits. Exhibit A contains excerpts from a certified copy of the plaintiff's deposition taken on December 15, 2006, and January 25, 2007. Exhibit B is a certified copy of the affidavit of Anne Hebner, the plaintiff's former supervisor, taken on January 29, 2007. That exhibit contains four sub-exhibits. Sub-exhibits A and B are copies of warning notices dated August 4, 1997, and November 25, 1997. Sub-exhibits C and D are copies of suspension notices dated April 20, 1998, and June 28, 2000. Exhibit C is a certified copy of the affidavit of Joan Gervasoni, a staff nurse for the defendant, taken on January 29, 2007. Exhibit D is a certified copy of the affidavit of Pam Cilfone, a human resources consultant for the defendant, and is accompanied by six sub-exhibits. Sub-exhibit A is a copy of the Waterbury Hospital health center human resources policy and procedure manual; sub-exhibits B through F are copies of the plaintiff's employee attendance records for 1996 through 2000, respectively.
The plaintiff filed her memorandum of law in opposition to the defendant's motion for summary judgment. Included with that memorandum were copies of thirteen cases; excerpts of the plaintiff's deposition transcript taken on December 15, 2006, and January 25, 2007; a copy of the affidavit of the plaintiff dated February 21, 2007; and a collection of uncertified copies of letters outlining the plaintiff's medical history, including various medical records.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 463-64, 899 A.2d 563 (2006). "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Id., 586. "To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
I. Counts One and Four — Title VII of the Civil Rights Act of 1964
The defendant moves for summary judgment on counts one and four on the ground that there is no genuine issue of material fact as to whether the plaintiff was discriminated against, or subjected to a hostile work environment, based on her gender. The defendant argues that the plaintiff conceded that she was not discriminated against based on her gender. The plaintiff counters that there are genuine issues of material fact regarding whether she was discriminated against, or subjected to a hostile work environment, based upon her gender.
42 U.S.C. § 2000e-2(a), entitled "Employer practices," provides: "It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." Physical disabilities are not a protected category under Title VII of the Civil Rights Act. Therefore, as a matter of law, the plaintiff cannot maintain a cause of action for discrimination based on disability under this statute.
The defendant produced uncontested evidence that the plaintiff was not discriminated against based on any of the protected categories of Title VII. In her affidavit, Hebner stated that neither the plaintiff's race or gender were considered in making the decision to terminate her employment. In her affidavit, Cilfone stated that the only thing considered in making the decision to terminate the plaintiff was her attendance record. In her deposition, the plaintiff stated that she was not claiming that she was discriminated against on the basis of race or gender.
The defendant has met its burden; therefore, the burden now shifts to the plaintiff to demonstrate that there is some disputed factual issue. The plaintiff argues that "maybe . . . a jury will deduce from the testimony . . . that the plaintiff was discriminated against because of her gender," and that she is "not in a position to unequivocally determine `why' she was discriminated against." Such conclusory statements, however, are insufficient to establish a genuine issue of material fact. See Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004) ("Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] ." (Internal quotation marks omitted.)). The plaintiff did not offer any evidence to refute the defendant's contention that the defendant was not discriminated against based on her gender. The plaintiff's affidavit is devoid of any evidence, or even an allegation, that she was discriminated against on the basis of one of the protected classes covered by the Civil Rights Act of 1964. Thus, there is no genuine issue of material fact as to whether the plaintiff can maintain a cause of action for discrimination under Title VII of the Civil Rights Act, and the defendant is entitled to summary judgment as a matter of law on the first count of the plaintiff's complaint.
Furthermore, "[i]n order to state a claim for harassment amounting to the creation of a hostile work environment under Title VII, [the] plaintiff must allege that such harassment was based on her race, color, sex, national origin or religion . . . Because Title VII does not apply to discrimination based on . . . disability, [the] plaintiff fails to state claim for hostile environment harassment under that statute." Orell v. UMass Memorial Medical Center, Inc., 203 F.Sup.2d 52, 60 (D.Mass. 2002). As outlined above, the defendant met its burden of showing that the plaintiff was not subjected to gender discrimination, and the plaintiff failed to show any issue of material fact existed regarding that issue. As a matter of law, Title VII does not apply to discrimination based upon disability; thus, there is no genuine issue of material fact as to whether the plaintiff can maintain a cause of action for a hostile work environment based on gender discrimination under Title VII. The defendant is entitled to summary judgment as a matter of law on the fourth count of the complaint.
II. Counts Two and Five — ADA Discrimination
The defendant moves for summary judgment on counts two and five on the grounds that, as a matter of law, the plaintiff is not a "qualified individual with a disability" within the meaning of the Americans With Disabilities Act, and that the defendant did not regard the plaintiff as disabled. The defendant also argues that the plaintiff cannot establish any discriminatory intent because she was terminated for a legitimate reason.
The plaintiff counters that, as a matter of law, she is a qualified individual with a disability within the meaning of the ADA. She argues that it does not matter whether the defendant considered her a qualified individual with a disability. Further, the plaintiff argues that the list of who is considered a qualified individual with a disability under the ADA has been, and can be expanded, and that she has shown that she can be considered a qualified individual with a disability under the ADA. According to the plaintiff, her deposition testimony raises genuine issues of material facts which must be decided by a jury because she testified about why her illnesses could make her eligible for ADA protection. The plaintiff argues that she is a "qualified individual" under the ADA because she has a physical impairment, lupus, that substantially limits one or more of her major life activities, and that courts have held that a person suffering from lupus can be considered "disabled" under the ADA. Finally, the plaintiff argues that she established a pattern of discriminatory and harassing behavior, and that the issue of intent is a disputed material fact.
Under the ADA, only people "qualified" for the job in question can maintain a claim for discrimination. "The [ADA] defines a `qualified individual with a disability' as `an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.' . . . In turn, a `disability' is: `(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.'" (Citations omitted.) Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 193, 122 S.Ct. 681, 151 L.Ed.2d 615, (2002). "To qualify as disabled under subsection (A) of the ADA's definition of disability, a claimant must initially prove that he or she has a physical or mental impairment . . . Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity. . . . [E]xamples of `major life activities' . . . [include] `walking, seeing, hearing,' and . . .'performing manual tasks.' 45 C.F.R. § 84.3(j)(2)(ii)(2001). To qualify as disabled, a claimant must further show that the limitation on the major life activity is `substantia[l].' 42 U.S.C. § 12102(2)(A)." (Citations omitted.) Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, supra, 534 U.S. 194-95. "According to the [Equal Employment Opportunity Commission] regulations, `substantially limit[ed]' means `[u]nable to perform a major life activity that the average person in the general population can perform'; or `[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.' 29 C.F.R. § 1630.2(j)(2001). In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: `[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.' §§ 1630.2(j)(2)(i)-(iii)." Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, supra, 534 U.S. 195-96. where symptoms vary from person to person, an individualized assessment of the effect of an impairment is necessary. Id., 199.
Therefore, in order for the defendant to succeed on its motion for summary judgment, it must show that there is no genuine issue of material fact as to whether or not the plaintiff is a "qualified individual with a disability" within the meaning of the ADA, and that there is no genuine issue of material fact regarding its contention that the decision to terminate the plaintiff was not based on her alleged disability.
The evidence offered by the defendant is not sufficient to meet its burden on summary judgment. The cases cited by the defendant do not stand for the proposition that someone with the plaintiff's illnesses and physical condition cannot be considered disabled under the ADA. They merely hold that, under the facts of those cases, those plaintiffs did not prove they were disabled. None of the other evidence submitted by the defendant, including the affidavits of Hebner, Gervasoni, and Cilfone, as well as the selected pages of the plaintiff's deposition, provide evidence that the plaintiff cannot be considered "disabled" under the ADA. Therefore, genuine issues of material fact exist as to whether the plaintiff may be considered "disabled" under the ADA.
Because the defendant did not produce evidence showing that there is no genuine issue of material fact regarding the plaintiff's "disability" status, the plaintiff need not submit any evidence showing that issues of material fact exist. See Socha v. Bordeau, supra, 277 Conn. 586. However, the court notes that the plaintiff, through her affidavit and deposition testimony, provided evidence that her impairments may substantially limit one or more of her major life activities. Specifically, the plaintiff stated that she either could not, or was limited in her ability to, walk, lift objects, take care of herself, and that she was confined to bed at times.
"Regarded as" prong of the ADA
The defendant moves for summary judgment on count five on the ground that it did not consider the plaintiff disabled. The plaintiff counters that summary judgment is inappropriate because the issue of intent should not be decided on a motion for summary judgment.
"A plaintiff is also disabled within the meaning of the ADA if he is `regarded' by his employer as having a physical or mental impairment that substantially limits a major life activity. 42 U.S.C. § 12102(2). A `regarded as' claim turns on the employer's perception of the employee and is therefore a question of intent, not whether the employee has a disability . . . It is not enough that the employer perceive the employee as `somehow disabled'; the employer must regard the employee as `disabled within the meaning of the ADA,' i.e., having an impairment that substantially limits a major life activity. (Citations omitted; internal quotation marks omitted.) Capobianco v. New York, 422 F.3d 47, 57 (2nd Cir. 2005).
"While summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . [t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001). Moreover, "even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).
In support of its contention that it did not consider the plaintiff "disabled," the defendant submitted portions of the plaintiff's deposition where she stated that the defendant never let her know it considered her disabled, and that, according to the plaintiff, the defendant never considered her disabled. In her affidavit, Cilfone testified that the plaintiff never informed her, or anyone else in the defendant's human resources department, about her alleged disabilities. The defendant did not produced any other evidence indicating that it did not consider the plaintiff "disabled." Viewing the evidence in the light most favorable to the nonmoving party, as the court must on a motion for summary judgment, the defendant has not met its burden of proving there is no genuine issue of material fact as to whether it regarded the plaintiff as "disabled."
The court's analysis does not end here however. Even if a person is to be considered disabled, or is regarded as being disabled under the ADA, an employer can still terminate that person for reasons unrelated to their disability. Through the affidavits of Hebner, Gervasoni and Cilfone, the defendant contends that the plaintiff was terminated for excessive absences unrelated to her alleged disabilities, that the plaintiff was previously fired for poor attendance, that the plaintiff was continually informed that she had to improve her attendance, and that the plaintiff did not inform the defendant immediately upon learning of her medical conditions. According to Hebner, the decision to terminate the plaintiff was based solely on her attendance record, and the plaintiff's alleged disabilities were never considered. Hebner also stated that the plaintiff was often absent at rates more than twice that allowed under the defendant's policy, and that the defendant offered to work with the plaintiff to arrange a better work schedule for her but she refused. Furthermore, according to Cilfone, on April 27, 2001, a meeting was held to address the issue of the plaintiff's termination. The plaintiff, and two union representatives were present at that meeting. The meeting focused on the plaintiff's attendance record and the defendant's attempts to offer her accommodations. At that meeting, neither the plaintiff, nor the union representatives raised the issue of the plaintiff's alleged disabilities or requested any accommodations.
Through the plaintiff's deposition testimony, the defendant provided evidence that the plaintiff was able to work even when she was sick, and that the plaintiff could carry out many of her major life activities. According to the affidavits of Hebner and Gervasoni, the plaintiff, through her position as a unit clerk for the family care center, performed an "essential" function at the hospital and was responsible for coordinating medical staff to address patient needs, including contacting appropriate medical staff during emergencies. Gervasoni also stated that the plaintiff was often the only person in that position during the times in which she was scheduled to work, and her "unreliable and unpredictable attendance placed a strain" on the family care unit.
The defendant has met its burden, and the burden now shifts to the plaintiff to show that there is some disputed factual issue. According to the plaintiff, she is able to perform the essential tasks of her job, the only reason she missed work was because of her illness, and many of her major life functions were impaired by her illness. The plaintiff specifically testified that she was in constant pain even when there were no visible signs of her illness, that she did not drive anymore, that she was not able to engage in the type of physical activities that she had done prior to her illness, and that she either was no longer able to perform life functions or that doing so required effort and caused pain. The plaintiff also stated that her duties were not limited to emergency situations and that her job "could be performed by others and was performed by others." In her affidavit, the plaintiff also stated that the defendant never offered to reduce her work schedule. Through this evidence, the plaintiff met its burden of showing that there are genuine issues of material fact regarding whether the plaintiff was terminated because of her alleged disability, whether her job required her to be there as much as the defendant asserted, and whether any attempt to accommodate her was made. Therefore, summary judgment is not appropriate on counts two and five.
III. Count Three — Intentional Infliction of Emotional Distress
The defendant moves for summary judgment for count three on the grounds that the count is barred by the three-year statute of limitations of General Statutes § 52-577, and that, as a matter of law, the plaintiff cannot show that the defendant engaged in the type of extreme and outrageous conduct necessary to establish intentional infliction of emotional distress. The plaintiff counters that her claim is not barred by the three-year statute of limitations. Further the plaintiff argues that she can show that the defendant engaged in the type of extreme and outrageous behavior that is required to establish such a claim, and therefore genuine issues of material fact exist.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute. Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "The applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years. General Statutes § 52-577." DeCorso v. Watchtower Bible Tract Society of New York, Inc., supra, 78 Conn.App. 873.
The plaintiff filed her original complaint on July 3, 2002. The plaintiff was terminated in May of 2001. In support of its contention that the plaintiff's intentional infliction of emotional distress claim is barred by the statute of limitations, the defendant cites to only one piece of evidence, a statement in the plaintiff's deposition wherein she states that harassment occurred throughout the entire year following her return from the first termination. The present action is based on the 2001 termination, and the defendant has failed to provide any evidence that acts that could give rise to allegations of intentional infliction of emotion distress did not take place in the three years prior to the commencement of this action. Even if the defendant had met its burden, and the burden shifted to the plaintiff, she would have met the burden of establishing the existence of a genuine issue of material fact. Through her affidavit and deposition testimony, the plaintiff states that she was subjected to a work environment that caused her emotional distress throughout the entire period that she worked for the defendant, and that she suffered emotional distress upon her termination. Therefore, there are genuine issues of material fact regarding whether the plaintiff's claim for intentional infliction of emotional distress is time barred, and summary judgment is not appropriate on the basis of the statute of limitations.
The court next turns to the question of whether, as a matter of law, the plaintiff asserted a valid claim for intentional infliction of emotional distress. "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). This court acts as gatekeeper in assessing a claim for intentional infliction of emotional distress. Hartmann v. Gulf View Estates Homeowner's Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 210-11.
Even assuming that all of the plaintiff's allegations are true, and viewing the evidence in a light most favorable to the non-moving party, as the court is required to do on a motion for summary judgment, there is no genuine issue of material fact as to whether the plaintiff has a valid claim for intentional infliction of emotional distress. The plaintiff contends she was subject to emotional distress by: being ignored by co-workers and her supervisor; being yelled at by a supervisor in front of co-workers and patients; being talked to in a "degrading way"; being subjected to mistreatment on a regular basis; having co-workers spy on her; and by being told that her supervisor wanted to get rid of her.
These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the law. Notwithstanding the fact that the supervisor and co-workers may have been callous and unsympathetic, courts have consistently rejected claims for intentional infliction of emotional distress in wrongful discharge actions where the alleged conduct was more specific and egregious than in the present case. In Appleton v. Board of Education, supra, 254 Conn. 205, the Supreme Court upheld the trial court's ruling that the plaintiff's assertions that she was subjected to two psychiatric examinations at the request of her employer, that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign, did not reach to the level of being extreme and outrageous. In Dollard v. Board of Education, 63 Conn.App. 550, 552-55, 777 A.2d 714 (2001), the Appellate Court upheld the trial court's ruling against the plaintiff who alleged that the defendants hypercritically scrutinized every aspect of her work and personal life, publicly admonished her, and organized a plan to force her to resign. In Carnemolla v. Walsh, 75 Conn.App. 319, 332, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the Appellate Court found that allegations that the plaintiff, a "devoted mother and employee, and honest person who had never been accused of a crime," was accused of embezzling company funds, and was requested to sign documents that purportedly were resignation and release forms, were not extreme and outrageous.
The plaintiff did not submit any evidence which supports her claim that the defendant's actions rose to the level of what courts consider extreme and outrageous. Thus, there is no genuine issue of material fact to show that the defendant's actions were extreme or outrageous, and, as a matter of law, the defendant is entitled to summary judgment on the third count of the complaint.
IV. Defendant's Fourth Special Defense
The defendant also moves for summary judgment on the ground that it is entitled to summary judgment because it exercised reasonable care to prevent and correct any alleged harassment or discriminatory behavior. The plaintiff counters that summary judgment is not appropriate through the defendant's fourth special defense because the defendant did not exercise reasonable care to prevent and correct harassing or discriminatory behavior. The plaintiff also argues that she "did not unreasonably" fail to take advantage of preventative measures. According to the plaintiff, she followed the proper procedure when she brought her complaints to the union, rather than to the defendant's human resources department.
The defendant offered various evidence in support of its contention that no harassment or discrimination occurred. It did not however, offer any evidence to show that it took affirmative steps to stop the alleged discriminatory or harassing behavior. Also, the defendant did not offer any evidence to show that the plaintiff acted improperly by bringing her concerns to the union, instead of directly to the defendant's human resources department. Therefore, there is a genuine issue of material fact as to whether the defendant acted properly to prevent the alleged harassment or discrimination, and the defendant is not entitled to summary judgment based on its fourth special defense.
CONCLUSION
For the forgoing reasons, the defendant's motion for summary judgment is granted as to counts one, three and four, and denied as to counts two and five, and as to the defendant's fourth special defense.